Creating Law Talking Guys

At PrawfsBlawg, Howard Wasserman asks an interesting question: How precise must a student’s answer on a test be when employing the language of the law:

Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence–“failure to state a claim upon which relief can be granted,” “proof sufficient to support a finding,” “meet the burden of production on the non-existence of the presumed fact” . . . it goes on.

My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the “gist” of the standard when we understand what they mean? Or should we demand that they be precise?

While he asks the question with regard to student answers on exams, whether to give them full credit or only partial credit when they demonstrate that they get the gist of a rule, even if they’ve mangled the language somewhat, the question really goes to a very fundamental problem for trench lawyers.

As Wasserman correctly notes, the language of the law can be confusing and cumbersome. Yet, words as tools of the trade for lawyers. We struggle with disjunctive versus conjunctive, and whether something is an element to be proven by the prosecution or a defense. These aren’t rhetorical discussions for us, but nuts and bolts.

On the one hand, we stand there helpless as judges mangle words, if not concepts, waving them off with an imperial flip of the hand as if the hundred years of caselaw never happened. Our remedy is to hash it out again on appeal, with a client in prison and hoping that the appellate court doesn’t play the same language game.

How often does gist trump explicit language when it serves to produce a desired outcome? How often do the definitions of words get mangled in the process of parsing a nuanced point? How do we explain to a defendant whose life is on the line that the critical words upon which we relied miraculously became uncritical, if not disappeared altogether, when the issue was decided?

On the other hand, we use words as tools. The ability to speak and write the language of the law is not an affectation. It’s what we do. It’s what we must be capable of doing. But it’s not just the ability to use the arcane language, but to fully comprehend what it means and why it’s used.

And yet, to suggest to law students that becoming fluent in the language of the law will somehow assure them either success or at least not abject failure strikes me as false. Noah Clements offered a comment he says was often used by a judge for whom he clerked:

As my old boss used to say “That can’t be right.”

After I made light of the comment, Noah responded that his boss was ex-Texas Supreme Court Justice Scott Brister, who would regularly say that to counsel during arguments. Notwithstanding its folksy, superficial appeal, this is a flip and facile statement. It can be right, even if it strikes one as sounding wrong off the top of your head.

Much of the language of the law develops out of competing rights and interests, where for reasons that elude other mortals, judges decide that one word or phrase captures the law and, well, that becomes the law. It may not sound right to another judge, or to the lawyers either, but that’s what it is. Happens all the time. Besides, coming from a court that held a sleeping lawyer to be effective, saying “that can’t be right” rings a bit hollow.

We see a similar phenomenon with non-lawyers, who frequently express things that sound somewhat lawyer-ish but miss a nuance, a burden, a key element, and despite using lawyer-ish sounding language, come out completely wrong. I often feel like a pedantic school marm correcting assertions in comments here because they leave out a critical detail in the language of the law that changes everything. Like Judge Brister, they say “that can’t be right,” and yet it is, even though their “gist” captured something close to the law but not quite close enough to nail it.

So does the specific language of the law matter enough to make a difference in what a lawprof expects of a law student? Of course it does. It’s what we do. But just as the law student needs to be taught the tools of the trade, she also needs to be taught that she will have to deal with those same words being mangled, ignored, spun, and misunderstood by the very people we are constrained to persuade. It’s unfair to demand that students have to learn something, only to spend their lives suffering when they get screwed by the “gist” of it, but that’s what being a lawyer requires.

As for whether Howard should give the student full or partial credit, who cares? That’s why they pay him the big bucks, and it’s not like anyone will ever think about whether they got a B+ or an A- after they graduate.

“I often feel like a pedantic school marm correcting assertions in comments here because they leave out a critical detail in the language of the law that changes everything.”

Pedantic school marms correct details that change nothing. Correcting critical details that change everything…that’s why we need lawyers. (Although the school marms usually give us a pat on the head for trying…)

Lawyer speak is just as important as doctor jargon, or jet pilot terminology. All are critical to the life or death of their clients/ patients/ passengers. The French philosopher Condillac observed that “every science requires a special language because every science has its own ideas.”

Just to be clear, it was the Texas Court of Criminal Appeals that held the sleeping lawyer not ineffective. The Texas Supreme Court deals mostly with civil cases. It’s one of two states that have bifurcated courts of last resort.

Scott H. Greenfield

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